Pull out your Employment Application and look at it. Does your Employment Application ask if the applicant has ever been convicted of a felony? If yes, be aware that on April 25, 2012, the EEOC issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, in which the EEOC cautions employers who ask about convictions on job applications and provides a “best practices” for how employers should utilize criminal records information. The EEOC simultaneously published Questions and Answers About the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.
The Guidance focuses on potential discrimination arising out of an employer’s use of criminal background checks in making employment decisions under both a “disparate treatment” and a “disparate impact” analysis. Disparate treatment is easy to identify and avoid. It occurs when an employer treats applicants with the same criminal records differently based on the applicant’s race or national origin. (While not explicitly mentioned in the EEOC’s Guidance, this also applies to color, religion, or sex). However, disparate impact is more difficult. It occurs when an employer neutrally applies criminal record exclusions, and the exclusions operate to disproportionately and unjustifiably exclude people of a particular race or national origin – in part because members of a protected group may be arrested and convicted at a higher rate. Because of this, the EEOC opined that a policy or practice that excludes all applicants with a criminal record from employment is not job related and consistent with business necessity. As a result, any such criminal background policies which disparately impact members of a statutorily protected class therefore will violate Title VII, unless required by federal law.
The Guidance reminds employers that arrests and convictions must be treated differently. The fact of an arrest does not establish that criminal conduct occurred. Conversely, a record of a conviction will usually serve as sufficient evidence that a person engaged in particular conduct. Nonetheless, the Guidance explains that employers must demonstrate that refusing to hire an applicant based upon criminal history is job-related and consistent with business necessity. In other words, the Guidance states that if an employer’s policy denies employment to applicant because of a criminal conviction, the employer must demonstrate that it only did so to applicants whose criminal conduct and the dangers it indicates are linked to the risks of the specific position.
To do this, the EEOC recommended that employers conduct an “individualized assessment” upon screening out applicants based upon criminal convictions. Under the individualized assessment, the employer must inform the applicant that he may be screened out because of past criminal conduct and provide the applicant an opportunity to demonstrate that the exclusion does not properly apply to him. The employer should consider several factors during the assessment, including the facts or circumstances of the conduct or offense; the number of offenses for which the individual was convicted; older age at the time of convictions or release from prison; whether the same kind of work was performed post-conviction with no-known incidents of criminal conduct; length and consistency of the employment history before and after the conviction; rehabilitation efforts (including education and training); employment and character references; and whether the individual is bonded under a federal, state, or local bonding program.
The EEOC noted that specific industries have federal prohibitions which preclude employment of an individual convicted in the previous ten years of specified crimes, including security screener, law enforcement officers, childcare workers, and bank employees. The EEOC stated that such exclusions are viewed as job-related and consistent with business necessity. However, the EEOC did take the position that state and local laws that limit or prohibit the employment of applicants with certain criminal convictions are preempted by Title VII and not a viable defense.
While the Guidance does not create a bright line, one-size-fits- all rule against utilizing criminal background checks in making employment decisions, the EEOC opined that a policy or practice that excludes all applicants with a criminal record from employment violates Title VII. The EEOC stated that failing to conduct the individualized assessment will make it difficult, it not impossible, for an employer to justify a criminal background check as job related and consistent with business necessity – despite the burden and cost of conducting such an individualized assessment for all applicants.
The EEOC’s Guidance also provides “Employer Best Practices” – tips for employers who consider criminal record information when making employment applications. It includes eliminating per se exclusion policies; a narrowly-tailored policy for screening applicants; training managers on how to implement the policy consistent with Title VII; limiting inquiries about criminal records to those job-related for the position and consistent with business necessity; and keeping information about criminal records confidential.
In sum, Title VII does not prohibit employers from obtaining criminal background reports about job applicants. Moreover, criminal background checks are an appropriate tool to help employers make informed hiring decisions and ensure the safety of their employees and customers. However, in light of the EEOC’s Guidance, employers should eliminate policies that automatically exclude applicants with a criminal conviction. Rather, they should consider the specific offense, the requirements of the specific position, and the potential liability risk the job entails when making employment decisions. The EEOC recommends an individual review process that determines whether the specific offense indicates unfitness for performing the job, whenever denying an applicant employment based upon a criminal record.
If you would like a copy of the EEOC’s Enforcement Guidance or have any questions related to the EEOC, or any other employment practices concerns, please feel free to contact one of our Employment Practices Liability Practice Group Members.